Opinion
No. 106,696.
2013-12-27
STATE of Kansas, Appellee, v. Jason Lee BRAMMER, Appellant.
Appeal from Marshall District Court; James A. Patton, Judge. Corrine E. Johnson, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Laura E. Johnson–McNish, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Marshall District Court; James A. Patton, Judge.
Corrine E. Johnson, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Laura E. Johnson–McNish, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
BUSER, J.
Jason Lee Brammer was convicted by a jury of involuntary manslaughter while driving under the influence of alcohol (involuntary manslaughter while DUI), in violation of K.S.A. 21–3442, and not having automobile liability insurance, in violation of K.S.A.2010 Supp. 40–3104. On appeal, he raises three issues. First, he claims there was insufficient evidence to prove what he contends were alternative means to commit involuntary manslaughter. Second, Brammer asserts the district court erred because it did not instruct the jury that to find him guilty of involuntary manslaughter it must be shown that his intoxicated driving was the proximate cause of Taylor White's death. Finally, Brammer alleges the district court erroneously instructed the jury regarding how to consider the charged offense of involuntary manslaughter while DUI, and the lesser included offense of driving under the influence (DUI). Finding no reversible error in the district court's rulings, we affirm the convictions.
Factual and Procedural Background
In the late afternoon on Sunday, October 4, 2009, 17–year–old Taylor White and his 15–year–old friend, Hunter Lindeen, went for a drive south of Marysville. The young men were riding in a Chevrolet pickup truck. The vehicle ultimately was traveling east on a rock-surfaced road which ascended a long hill. The weather was sunny and still.
The men noticed a Jeep Cherokee cresting the hill from the opposite direction. At trial, Lindeen testified that the Jeep was traveling about 70 miles per hour in the center of the road. According to Lindeen, the Jeep did not yield, but White did, maneuvering the Chevrolet pickup's passenger-side wheels onto the grass alongside the road.
The Jeep passed as White, now driving 30 to 35 miles an hour, approached the crest of the hill. Lindeen testified that “we noticed none of the dust had settled. It stayed right with the road. It hadn't moved at all.” White's vehicle moved towards the center of the road.
Three or four seconds later, a Dodge pickup truck which was following the Jeep suddenly appeared. Lindeen testified that “When we first saw [the Dodge pickup] ... you couldn't see very far in front of the hood.” Based on his quick observation before the head-on collision, Lindeen estimated the Dodge pickup was traveling the same speed as the Jeep.
The Dodge pickup, driven by Brammer, was following the Jeep which had Sally Adkins, Brammer's fiancee and the mother of his children, as a passenger. Adkins testified that the Jeep she was in was traveling only 40 or 45 miles per hour and the Chevrolet pickup driven by White was traveling in the center of the road. Adkins claimed the Jeep “had to move over to the side of the road to miss ... colliding with them.”
Brammer testified in his own defense. He confirmed that he was driving the Dodge pickup, but he remembered little about the circumstances surrounding the collision. He did remember thick dust on the road, but he said he never saw the Chevrolet pickup and could not recall the impact.
Brammer testified that he had drunk a 12–pack of beer the evening before the collision. On cross-examination, Brammer admitted that he might have drunk more, saying, “I just don't recall for sure,” Brammer claimed he did not have a hangover on the morning of the collision. He further testified that he had drunk a beer at about 10 a.m. or 10:30 a.m. When asked if he had consumed other alcoholic beverages on the day of the collision, he answered, “Not that I recall.”
The pickups collided head-on, but off-center, with very extensive damage to the driver's compartments of both pickups. As a result of the collision, White's aorta was torn in half, which was described as “intrinsically a nonsurvivable injury.” Lindeen, however, regained consciousness with only cuts to his face. He crawled from the vehicle, telephoned for help, and tried to assist White.
Hearing a shout, Lindeen ran to the Dodge pickup where he found Brammer trapped inside. Brammer asked what had happened, and Lindeen told him, “[W]e were in a wreck.” Brammer responded, “[T]his can't happen,” and, “I can't have the cops involved.” Lindeen testified that he smelled alcohol coming from Brammer's vehicle.
Donald Self, a deputy with the Marshall County Sheriff's Department, was dispatched to the collision and arrived about 6:16 p .m. Deputy Self attempted to assist White but indicated that “[t]here was not much that [he] could do at the time.” Brammer was still trapped in the Dodge pickup and had to be extracted. He was in extreme pain. Because of the severity of the accident, the investigation was turned over to David Huerter, a trooper with the Kansas Highway Patrol.
Trooper Huerter saw no marks on the roadway indicating “evasive action or hard braking.” He concluded from this that “neither driver took evasive action.” Trooper Huerter was able to locate the “area of impact ... [p]retty much [in] the center” of the roadway. The trooper also testified that Jim Keller, an emergency responder with Marysville Ambulance who treated Brammer at the scene, advised him that “he could detect [the] odor of alcohol about Mr. Brammer's person.”
Trooper Huerter testified about the results of his investigation. In particular, he identified factors he believed contributed to the cause of the accident. First, he opined that Brammer “was under the influence of alcohol.” According to Trooper Huerter, in his career he had arrested about 400 individuals for DUI. Based on this experience the trooper opined that some intoxicated drivers had slower reflexes and “impaired, slowed down” thought processes. In addition to Brammer's intoxication, Trooper Huerter also noted “the dust factor” and “some observations as far as the roadway” as contributing factors.
White and Brammer were separately airlifted to Stormont–Vail Hospital. White was pronounced dead upon arrival. White's blood was subsequently tested with no indications of alcohol or drug usage.
Brammer arrived at the hospital about 8:16 p.m. Lisa Schwarz, an emergency room nurse who cared for Brammer, noted he smelled of alcohol. She testified that Brammer “was not very cooperative and did not give me answers to my questions. He didn't really speak to me.” Schwarz did recall, however, that Brammer told her to “[expletive] off” when she asked him a question.
Kody Olson, a trooper with the Kansas Highway Patrol, was dispatched to the hospital to conduct a blood draw. The trooper was unable to speak with Brammer until about 9:21 p.m. Trooper Olson read the DC–70 implied consent form to Brammer and obtained his permission to draw blood. The blood was drawn at about 9:30 p.m. It was tested by Julinne Kemp, a forensic toxicologist with the Kansas Bureau of Investigation. Kemp detected a blood alcohol concentration of 0.11, which is higher than the legal limit.
Kemp testified generally regarding the effects of alcohol on individuals. She said with a 0.11 blood alcohol concentration one would “expect to see a bit of drowsiness, ... slightly increased risk taking potential, ... decreased visual acuity, ... some change in depth perception,” and a slower response to information generally. Kemp opined that “[a]ll of these things would affect a person's ability to drive.” Questioned about the time period between the collision and the blood draw, Kemp opined that, assuming Brammer had not consumed alcohol after the collision, his blood concentration at the time of the collision would have been at least 0.11 and possibly higher.
At the conclusion of the trial, Brammer was found guilty of involuntary manslaughter while DUI and not having automobile liability insurance. Brammer filed a timely appeal.
Sufficiency of the Evidence to Prove Involuntary Manslaughter
On appeal, Brammer contends
“the district court provided the jury with an instruction stating that to prove the charge [involuntary manslaughter], the jury had to find that Mr. Brammer unintentionally killed Taylor White ‘done in the commission of, while attempting to commit, or while in flight from committing or attempting to commit the act of operating any vehicle in this state’ while having a blood alcohol concentration [of] .08 or higher.”
Brammer essentially concedes there was sufficient evidence that he was operating the Dodge pickup at the time of the collision. However, Brammer argues:
“Because the [S]tate failed to present sufficient evidence to convict [him] of the attempt to drive his truck or the flight from an attempt to drive his truck, there was [insufficient] evidence to convict him of those means within the charge that the [S]tate brought or the instructions the district court gave to the jury.” (Emphasis added.)
In short, Brammer is raising an alternative means argument. A criminal defendant has a statutory right to a unanimous jury verdict in Kansas. State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010); see K.S.A. 22–3421. In an alternative means case, however, unanimity is only required as to guilt for the single crime charged; unanimity is not required as to the means by which the crime was committed as long as each alternative means is supported by substantial evidence. State v. Becker, 290 Kan. 842, 855, 235 P.3d 424 (2010).
In State v. Shaw, 47 Kan.App.2d 994, 1003, 281 P.3d 576 (2012), petition for rev. denied May 20, 2013, a panel of our court ruled:
“Under the plain language of K.S.A. 21–3442, there are three alternative means to commit the crime of involuntary manslaughter while driving under the influence of alcohol: the unintentional killing of a human being committed in the (1) commission of, (2) attempt to commit, or (3) flight from an act described in K.S.A. 8–1567 and amendments thereto.”
Since Shaw, however, our Supreme Court has issued State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012), which comprehensively addressed and clarified Kansas law regarding alternative means. The panel in Shaw did not have the benefit of Brown 's analysis which endorsed a different approach to the determination of what constitutes an alternative means crime. Still, we resolve this issue without deciding whether involuntary manslaughter while DUI is an alternative means offense.
We note the relevant elements instruction, Instruction 9, advised the jury that to find Brammer guilty of involuntary manslaughter it must find, in part, that the killing “was done in the commission of, while attempting to commit, or while in flight from committing or attempting to commit the act of operating any vehicle in this state.” The verdict form signed by the presiding juror, however, stated, “We, the jury find the defendant guilty of involuntary manslaughter while driving under the influence of alcohol with an alcohol concentration of .08 or more.” By their verdict, the jurors did not find that Brammer attempted to operate or flee while operating or attempting to operate his vehicle while intoxicated. Rather, the jury's unanimous verdict, as reflected on the verdict form, was that Brammer employed only one method of violating the statute—he drove the vehicle that killed White while having an alcohol concentration of .08 or more. Accordingly, and assuming without deciding that involuntary manslaughter while DUI is an alternative means crime, we hold that Brammer was not deprived of his statutory right to a unanimous jury.
Failure to Submit an Instruction on Proximate Cause
Brammer contends the trial court erred because it “failed to instruct the jury on proximate cause.”
About 1 month before trial, Brammer submitted a set of proposed jury instructions. Brammer suggested the following language be inserted after the elements instruction for involuntary manslaughter:
“The fault or lack of fault of Jason Brammer is a circumstance to be considered along with all the other evidence to determine whether the defendant's conduct was or was not the direct cause of Taylor White's death. See State v. Collins, 36 Kan.App.2d 367, 138 P.3d 793 (Kan.App.2006).
“While contributory negligence is no defense in a prosecution for a driving offense of involuntary manslaughter, it is a circumstance to be considered along with all other evidence to determine whether Jason Brammer's conduct was or was not the proximate cause of Taylor White's death. You may consider the conduct of Taylor White to determine if his contributory negligence may have been a substantial factor in his death. See State v. Chastain, 265 Kan. 16, 960 P.2d 756 (Kan.1998).”
During the instructions conference conducted during the trial, the trial court provided both counsel with the court's jury instructions. These instructions were individually numbered. The trial judge directed counsel to object to any individually numbered instruction and “[i]f there's no objection stated then I will move on. If you wish additional language to be added or otherwise then state it at that time.”
The trial court's elements instructions for involuntary manslaughter while DUI included the following language: “The fault or lack of fault of Jason L. Brammer is a circumstance to be considered along with all the evidence to determine whether the defendant's conduct was or was not the direct cause of Taylor White's death.” As set forth earlier, the trial court's language was a verbatim recitation of the first sentence of Brammer's proposed instruction. But the second and third sentences of Brammer's proposed instruction were not included in the trial court's version.
Importantly, during the instructions conference, Brammer did not object to the trial court's elements instructions regarding involuntary manslaughter while DUI. Moreover, when the trial court asked if the defense was requesting any other instructions, Brammer's counsel replied, “No, your Honor.”
As a result, before proceeding to the merits of the argument we must consider whether Brammer contemporaneously objected to the trial court's instructions. On appeal, Brammer claims that he “requested” his so-called proximate cause instruction, but the State properly notes Brammer's failure to object contemporaneously to the instructions during trial. Of note, Brammer did not file a reply brief to respond to the State's argument.
Recently, our Supreme Court reaffirmed the need for an appellant to preserve at trial any objections to jury trial instructions:
“K.S.A. 22–3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.” State v. Williams, 295 Kan. 506, Syl. ¶ 3, 286 P.3d 195 (2012).
The record is clear that Brammer never objected at trial to the district court's failure to give his proposed proximate cause instruction or objected to the court's instruction which was a verbatim recitation of one sentence of Brammer's proposed three-sentence instruction. Moreover, the record does not show an occasion where Brammer alerted the district court to the grounds upon which the proximate cause instruction was necessary. Accordingly, we will review this issue for clear error. See 295 Kan. 506, Syl. ¶ 4.
Once again, Williams guides our review:
“To determine whether an instruction or a failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate employing an unlimited review of the entire record.”
“If the reviewing court determines that the district court erred in giving or failing to give a challenged instruction, then the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.” 295 Kan. 506, Syl. ¶¶ 4–5.
The prejudice question requires “a review of the entire record and a de novo determination.” 295 Kan. at 516.
With regard to the first step in the Williams clearly erroneous analysis, Brammer contends the trial court erred in failing to instruct the jury on proximate cause. Specifically, Brammer contends that providing the jury with the first sentence of his proposed instruction without the second and third sentences foreclosed “a significant possibility that the jury could have found that the road conditions and Mr. White's driving violations were the proximate cause of the death, not Mr. Brammer's intoxicated state.”
At the outset, Brammer does not identify what he claims were White's driving violations. Trooper Huerter's investigation revealed no traffic violations by White, and our review of the trial record convinces us that, contrary to his stance on appeal, Brammer never suggested to the jury that White was at fault or caused the collision. Although there was evidence of diminished sight distance on the road due to dusty conditions, that was not caused by the fault of either Brammer or White.
Moreover, at trial, Brammer's defense was straightforward: He was not at fault for causing the collision which resulted in White's death. In Brammer's view, the collision was simply an unfortunate accident. This defense was succinctly summarized by Brammer's counsel in closing argument: “I'm not saying the fault lies anywhere.” In short, although Brammer's focus on appeal is on White's fault and, as a result, the need for an instruction to guide the jury's consideration of White's fault, at trial Brammer did not predicate his defense on or argue to the jury that White's driving was at fault or caused the collision.
The first sentence of Brammer's proposed instruction stated: “The fault or lack of fault of Jason Brammer is a circumstance to be considered along with all the other evidence to determine whether the defendant's conduct was or was not the direct cause of Taylor White's death.” As noted earlier, the district court did insert this sentence—exactly as proposed by Brammer—in the elements instruction for involuntary manslaughter while DUI which was provided to the jury. This language was derived from State v. Collins, 36 Kan.App.2d 367, 138 P.3d 793 (2006).
The facts in Collins are markedly dissimilar to the facts in this case. As summarized by our court:
“After several hours of drinking, Collins and his passenger left a bar at 2 a.m. on August 17, 2003, in his pickup truck. He followed behind a motorcycle driven by his friend Jesse Winsky. Robyn Curtis was riding on the motorcycle with Winsky. When the motorcycle pulled ahead and out of sight, Collins sped up to catch it. Collins' passenger testified that when Collins next saw the motorcycle, it was parked in the roadway with Curtis still seated on board. Winsky had gotten off to urinate nearby. Collins' passenger yelled at Collins to stop. Collins attempted to stop the truck but hit the motorcycle and Curtis was killed.” 36 Kan.App.2d at 367–68.
Although Collins was intoxicated when he struck and killed Curtis, he produced an expert witness
“who testified that the accident would have occurred even if Collins had not been intoxicated. In arriving at this opinion, the witness considered the truck's braking ability; the placement of the motorcycle in the road; its location just beyond a curve in the road; the time of the accident; the reaction time of a normal, unimpaired driver; and the stopping distance for the truck being driven at Collins' speed of 55 miles per hour at the time.” 36 Kan.App.2d at 368.
The trial court instructed the jury that to establish the charge of involuntary manslaughter while DUI, the State must establish:
“ ‘3. That the death of Robyn Curtis occurred ... as aproximate result of the operation of vehicle by ... Collins while under the influence of alcohol;
“ ‘4. That the proximate cause or legal cause of death of Robyn Curtis is that cause which in natural continuous sequence, unbroken by an intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence or result of the defendant's act.’ “ 36 Kan.App.2d at 368.
The jury returned a guilty verdict for the lesser included offense of DUI. The State appealed, arguing that the “proximate cause instruction changes the elements of the crime.” 36 Kan.App.2d at 368. Our court disagreed and affirmed, holding that proximate cause was an issue in the case. 36 Kan.App.2d at 372.
Nevertheless, our court concluded that “the manner in which the [trial] court instructed the jury on proximate cause was confusing.” 36 Kan.App.2d at 372. It therefore suggested a modification: “ ‘The fault or lack of fault of Robyn Curtis is a circumstance to be considered along with all the other evidence to determine whether the defendant's conduct was or was not the direct cause of Robyn Curtis' death.’ “ 36 Kan.App.2d at 372. As discussed more fully below, our court borrowed this language from an instruction approved by our Supreme Court in State v. Chastain, 265 Kan. 16, 23, 960 P.2d 756 (1998).
Importantly, in Collins, our court qualified the propriety of giving this modified instruction, indicating it was proper there only because there was “evidence of Curtis' fault.” 36 Kan.App.2d at 372. Our court concluded, “In a case without this evidence, however, the trial court should use PIK Crim.3d 56.06–A, without any modification.” (Emphasis added.) 36 Kan.App.2d at 372.
Subsequently, the comment to PIK Crim.3d 56.06–A adopted this modified language based on Collins: “ ‘The fault or lack of fault of [decedent] is a circumstance to be considered along with all the other evidence to determine whether the defendant's conduct was or was not the direct cause of [decedent's] death.’ “ 36 Kan.App.2d at 372. The PIK Committee also noted that this modified language should be used “[i]f causation is an issue in the case.” PIK Crim.3d 56.06–A, Comment.
As discussed above, there was substantial evidence (comprised of both direct testimony and expert opinion) to prove that the decedent's fault caused the decedent's death in Collins. Although there was some evidence from which a jury might have found that White's driving contributed to his own death, unlike Collins, Brammer did not present expert opinion testimony or argument tending to show that White was at fault or caused the collision. Nevertheless, the trial court did give the jury the modified language in the form requested by Brammer.
Although citing Collins to support the language submitted in his proposed jury instruction, Brammer's counsel mistakenly inserted Brammer's name where White's name should have been listed in the first of the two “decedent” blanks of the modified PIK Crim.3d 56 .06–A instruction, which the trial court thereafter submitted verbatim to the jury. If Brammer's name had not been inserted in place of White's name, the jury would have received the modified instruction our court endorsed in Collins.
Notably, Brammer does not specifically complain—or even mention—the mistaken insertion of his own name where White's name (as the decedent) should have been listed. Of course, Brammer invited this error and may not complain about it on appeal. See State v. Peppers, 294 Kan. 377, 393, 276 P.3d 148 (2012). Moreover, an issue not briefed by the appellant is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
But even if Brammer had raised it, we find no error in the instruction as given. While not an accurate recitation of PIK Crim.3d 56.06–A, the instruction was legally correct and alerted the jury that Brammer's fault or lack of fault was a circumstance “to be considered along with all the evidence ” to determine if his conduct was the “direct cause” of White's death. (Emphasis added.) This “other evidence” would have included any allegation of contributory negligence or fault by White or other factors, such as road conditions or limited visibility.
Having concluded the actual instruction provided to the jury was not error, we move on to consider whether the district court's failure to submit the proximate cause language found in the second and third sentences of the proposed instruction Brammer submitted prior to trial was error. The two sentences submitted by Brammer were modified from Syllabus 7 found in Chastain.
In Chastain, “the defendant argued [at trial] that [the decedent] caused his own death by proceeding into the intersection without stopping at a stop sign. The State claimed the defendant was operating his vehicle at a high rate of speed under the influence of alcohol, causing [the decedent's] death.” 265 Kan. at 17–18.
In response to the jury's question during deliberations about “whether the fault of each driver is to be considered,” the trial court “responded by informing the jury that the fault or lack of fault of the decedent ... was a circumstance to be considered along with all other evidence to determine whether the defendant's conduct was or was not the direct cause of [decedent's] death.” 265 Kan. at 23. On appeal, our Supreme Court approved the trial court's one sentence response. Of note, the first sentence of Brammer's proposed instruction (which the district judge in Brammer did provide to the jury) was derived from the district court's response to the jury's question in Chastain, which was later adopted by our court in Collins.
In the second and third sentences of his proposed instruction, however, Brammer incorporated some, but not all, of the language of Syllabus 7 from Chastain:
“While contributory negligence is no defense in a prosecution for a driving offense of involuntary manslaughter, it is a circumstance to be considered along with all other evidence to determine whether Jason Brammer's conduct was or was not the proximate cause of Taylor White's death. You may consider the conduct of Taylor White to determine if his contributory negligence may have been a substantial factor in his death.”
Significantly, Brammer does not cite any Kansas appellate case wherein the language of Syllabus 7 in Chastain was approved for use as a jury instruction. Perhaps this is because the two sentences included unique legal terminology like “contributory negligence” and “proximate cause” without providing any definitions to explain to jurors what these legal terms meant. The Chastain court apparently found that the legal principles set forth in Syllabus 7 could be simply conveyed to the jury in the one sentence the Chastain trial court gave to that jury that was later adopted by our court in Collins, approved for use by the PIK committee, and later submitted to the trial court by Brammer, which the trial court provided to the jury.
In summary, we are not convinced that the district court erred in failing to provide the jury with the second and third sentences of Brammer's proposed instruction.
Assuming for purposes of argument that there was error in this instruction, however, Brammer's claims still would not merit relief because he has failed to establish prejudice. After the parties submitted their briefs in this case, the Kansas Supreme Court revisited the standard for reviewing jury instruction issues involving the clearly erroneous standard such as the one presented here. See State v. Trujillo, 296 Kan. 625, 630–32, 294 P.3d 281 (2013); Williams, 295 Kan. at 518.
In Williams, our Supreme Court disapproved of a standard that requires the reviewing court to be “firmly convinced that there is a real possibility the jury would have returned a different verdict if the instruction had been given” in favor of a standard that requires the reviewing court to be “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. at 514–16.
In Trujillo, the Supreme Court reaffirmed the standard cited in Williams and did so not because it disapproved of the “real possibility” standard but instead because it did not “discern a practical difference between the [two] tests.” 296 Kan. at 631. Although we are not inclined to agree that the practical impact of the two standards cited in Williams and Trujillo are one and the same, we remain duty bound to follow precedent from our Supreme Court absent some indication that the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (May 4, 2012). Thus, Brammer's claim of instructional error will be assessed to determine whether we are “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.”
To that end, and as discussed in the Factual and Procedural Background section, there was considerable direct and opinion evidence produced by the State to show that Brammer's driving while intoxicated caused the death of White. A reasonable factfinder could have concluded beyond a reasonable doubt that Brammer was driving down the center of the road at an excessive speed in the dust cloud of a preceding vehicle because alcohol had affected his perception and judgment. Although there was some evidence from which a jury might have found that White's driving contributed to his own death, we are not “firmly convinced that the jury would have reached a different verdict” had language identical to PIK Crim.3d 56.06–A and/or the second and third sentences of Brammer's proposed instruction been provided to the jury. (Judge Atcheson concurs on this point because the clearly erroneous standard applies—Brammer did not request a proper causation instruction and did not object to the district court's instructions—and as that standard has been stated in Williams and Trujillo, Judge Atcheson is not firmly convinced the jury would have reached a different result had a proper instruction been given.)
Failure to Properly Instruct the Jury on Lesser Included Offense
Brammer contends the trial court erred when it instructed the jury regarding how it should consider the charged offense of involuntary manslaughter while DUI and the lesser included offense of DUI.
Prior to trial, Brammer submitted the following proposed instruction:
“The offense of Involuntary Manslaughter—Driving Under the Influence with which defendant is charged includes the lesser offense of Driving Under the Influence.
“You may find the defendant guilty or not guilty of Involuntary—Manslaughter Driving Under the Influence.
“You may find the defendant guilty or not guilty of Driving Under the Influence.
“When there is a reasonable doubt as to which of two or more offenses defendant is guilty, he may be convicted of the lesser offense only.
“Your presiding Juror should mark the appropriate verdict.”
This instruction was akin to PIK Crim.3d 68.09, which provides:
“The offense of ( principal offense charged ) with which defendant is charged includes the lesser offense(s) of ( lesser included offense or offenses ).
“You may find the defendant guilty of ( principal offense charged ) ( first lesser included offense ) ( second lesser included offense ) or not guilty.
“When there is a reasonable doubt as to which of two or more offenses defendant is guilty, (he)(she) may be convicted of the lesser offense only.
“Your Presiding Juror should mark the appropriate verdict.”
PIK Crim.3d 68.09 has been recommended with minor changes since at least 1971. See PIK Crim.3d 68.09.
For its part, the State submitted proposed jury instructions for DUI as a lesser included offense of involuntary manslaughter. The State treated the lesser included offense in the alternative, with one instruction for an alcohol concentration of more than .08, and a separate instruction for being DUI to a degree that rendered Brammer incapable of safely driving.
The State also proposed what it called “lesser included offense language”: “If you don't agree that the defendant is guilty of Involuntary Manslaughter While [DUI], you should then consider the lesser included offense of Operating or Attempting to Operate a Vehicle While Under the Influence of Alcohol.” This proposed instruction differed from the language of PIK Crim.3d 68.09.
The trial court followed the State's proposed language except that one alternative instruction omitted the word “then,” stating “you should consider the lesser included offense,” instead of “you should then consider the lesser included offense,” as in the other instruction.
Once again, at trial, Brammer did not object to the trial court's failure to provide PIK Crim.3d 68.09 or Brammer's proposed instructions which were similar to PIK Crim.3d 68.09. Because Brammer did not object at trial, stating “distinctly the matter to which the party objects and the grounds for objection,” we review for clear error. See Williams, 295 Kan. 506, Syl. ¶ 3.
For the first time on appeal, Brammer now argues that the trial court should have submitted his proposed instruction because “a jury's consideration of a lesser included offense should not be contingent on the finding of ‘not guilty’ for the primary offense.” According to Brammer, “[t]here is a real possibility that the jury would have returned a verdict on the lesser included offense had the jury instruction instructed the jury on the proper order in which to consider the offenses and instructed the jury on what to do in the event of any reasonable doubt.”
In support of this proposition, Brammer cites a homicide case: State v. Miller, 293 Kan. 46, 259 P.3d 701 (2011). In Miller, our Supreme Court found:
“The district court erred in this case when it properly instructed the jury pursuant to PIK Crim.3d 56.05, Alternative B to simultaneously consider the lesser included offenses of second-degree murder and voluntary manslaughter, but then also erroneously instructed the jury to sequentially consider the lesser offenses of second-degree murder and voluntary manslaughter, using a modified form of PIK Crim.3d 56.05, Alternative A.” 293 Kan. 46, Syl. ¶ 4.
Our Supreme Court held that the latter instruction was clearly erroneous under the facts of that case because the jury was instructed to consider the principal offense and the lesser included offense sequentially. 293 Kan. at 53–54. As a result, the jury could have found the defendant guilty of the greater offense without ever considering the lesser offense. See 293 Kan. at 52–53.
Miller is distinguishable from the case at bar. First, unlike the present case the instructions given in Miller were contradictory, which increased the probability of juror confusion. Second, the offending instruction in Miller could have resulted in the jury not even considering the lesser degree of killing—voluntary manslaughter. In the case at bar, however, the elements of the lesser included offense, DUI, were part of the elements which comprised the greater offense of involuntary manslaughter while DUI. Thus, by considering the elements of the greater offense, the jury was also sequentially considering the elements of the lesser offense.
Brammer also asserts that the trial court's failure “to clarify the reasonable doubt requirement between greater and lesser offenses” was error. In considering this assertion, we note that the trial court provided the jury with two separate instructions:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.”
The trial court also informed the jury:
“Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged. Your finding as to each crime charged must be stated in a Verdict Form signed by the Presiding Juror.”
In reviewing Brammer's claim, we consider all the jury instructions taken as a whole. These instructions, taken together, sufficiently informed the jury of the reasonable doubt standard as it applied to both the greater and lesser charges. Although the better practice would have been to use the applicable PIK instruction, the instructions provided did not misstate the law. And even if the instructions as given had misstated the law, Brammer's claim still would not merit relief because he has failed to establish clear error.
Again, the standard for reviewing jury instruction issues involving the clearly erroneous standard such as the one presented here is whether we are “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” Williams, 295 Kan. 506, Syl. ¶ 5. Given that the elements of the lesser included offense, DUI, were included in the greater offense of involuntary manslaughter while DUI, considering all the instructions provided to the jury as a whole, and taking measure of the substantial direct and opinion evidence produced by the State to show that Brammer's driving while intoxicated caused the death of White, we are not firmly convinced that the jury would have reached a different verdict had the court given the instruction proposed by Brammer instead of the one proposed by the State.
Affirmed.